Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As … Read more
Waite was originally sentenced in 2011, principally to 125 years’ imprisonment based on five 924(c) counts and a drug conspiracy count. The Circuit vacated his original sentence (in 2016) because of an issue with the drug sentence. At the resentencing in March 2018, the district court subtracted 10 years from the original (20-year) drug sentence, … Read more
The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr. Kassir’s 2255 appeal … Read more
In United States v. Scott, the en banc Second Circuit held that New York first-degree manslaughter, in violation of N.Y. Penal Law § 125.20(1) (applicable to one who “with intent to cause serious physical injury to another person, … causes the death of such person or of a third person”), is a categorical crime of … Read more
Do you have a client who was deemed a career offender pursuant to the residual clause of the mandatory (pre-Booker) Career Offender Guideline? If so, keep fighting that sentence! There are at least a couple ways: 1) If the client has a petition pending under 28 U.S.C. § 2255, make sure to argue the sentence is … Read more
In Shabazz v. United States, 912 F.3d 73 (2d Cir. 2019), the Circuit held that Connecticut’s simple robbery statute, Connecticut General Statute § 53a-133, qualifies as a violent felony under the force clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”). Id. at 78. Here, the Circuit holds that Shabazz “resolves” Petitioner … Read more
In today’s United States v. Watkins, No. 18-3076, a panel of the Second Circuit held the residual clause definition of “crime of violence” in the Bail Reform Act is not void for vagueness. This may surprise some observers, as the Bail Reform Act’s residual clause is identical to – and subject to the same categorical … Read more
Because the residual clause of 18 U.S.C.§ 924(c)(3)(B) is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728 (Aug. 30, 2019). The Supreme Court vacated the Second Circuit’s original … Read more
In United States v. Evans, the Second Circuit upheld a sentence imposed pursuant to 18 U.S.C. 924(e)(2)(B), the Armed Career Criminal Act (“ACCA”). As the Court described it, the case presented “the latest entry in a series of cases defining offenses that qualify as ‘violent felonies’” for the purposes of ACCA’s sentencing enhancement. The Court … Read more
Today, in United States v. Hendricks, the Second Circuit held that robbery of a credit union, in violation of 18 U.S.C. 2113(a), is a “crime of violence” for the purposes of 18 U.S.C. 924(c). The Circuit said it had “little difficulty in holding that bank robbery committed ‘by intimidation’ categorically constitutes a crime of violence … Read more